Citation Nr: 0906213
Decision Date: 02/19/09 Archive Date: 02/27/09
DOCKET NO. 04-17 821 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to an initial rating higher than 10 percent
for headaches.
2. Entitlement to an initial rating higher than 0 percent,
i.e., a compensable rating, for paresthesia of the right
lingual nerve and hyperesthesia of the right inferior
alveolar nerve (hereafter referred to as a right nerve
injury).
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The Veteran and his wife
ATTORNEY FOR THE BOARD
S. M. Boehm, Law Clerk
INTRODUCTION
The Veteran had active military service from January 1998 to
January 2001.
This appeal to the Board of Veterans' Appeals (Board) is from
a November 2002 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Oakland, California,
which granted service connection for headaches and assigned
an initial 10 percent disability rating retroactively
effective from January 28, 2001 (the day after the Veteran's
discharge from service). That November 2002 RO decision also
granted service connection for right nerve injury and
assigned an initial noncompensable (i.e., 0 percent)
disability rating also retroactively effective from January
28, 2001. The Veteran appealed for higher initial ratings.
See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999)
(indicating when this occurs VA adjudicators must consider
whether the Veteran's ratings should be "staged" to
compensate him for times since the effective date of his
award when his disabilities may have been more severe than at
others).
In April 2006, as support for his claims, the Veteran
testified at a videoconference hearing before a Veterans Law
Judge (VLJ) of the Board. Then in May 2006, the Board
remanded this case to the RO via the Appeals Management
Center (AMC) in Washington, DC, for further development and
consideration. The AMC completed that development (including
considering additional medical evidence), continued to deny
the claims, and returned the case to the Board for further
appellate consideration.
Thereafter, in a June 2007 letter, the Board informed the
Veteran that the VLJ who had conducted his hearing was no
longer employed by the Board (having retired), and thus, the
Veteran had the option of having another hearing with a VLJ
that will ultimately decide his appeal. He responded later
that month that he wanted another hearing, this time with the
presiding VLJ at the RO (Travel Board hearing).
See 38 U.S.C.A. § 7107(c); 38 C.F.R. §§ 20.700, 20.704,
20.707.
So in July 2007 the Board again remanded this case to the RO
via the AMC, to schedule this additional hearing. And in
November 2008 the Veteran and his wife testified at this
hearing before the undersigned VLJ.
Regrettably, the Board must again remand the claim requesting
a higher rating for the headaches, for still further
development and consideration, and the remand again will be
via the AMC. However, the Board is going ahead and deciding
the claim for a higher rating for the right nerve injury.
FINDINGS OF FACT
1. A VA neurologist that examined the Veteran in November
2006, on remand, to assess the severity of his right nerve
injury in relation to the applicable rating criteria -
including in terms of whether there is loss of motor function
of the tongue, concluded there is no paralysis of muscles
secondary to the neuropathy of the affected nerves, as these
nerves do not have motor function. They are pure sensory
nerves, and a requirement that there be motor impairment is
not medically sound. The examiner went on to indicate the
Veteran clearly has neuropathies of these nerves, consistent
with the anatomy, in that there is sensory loss and
hyperesthesia.
2. Given the results of that VA examination, and the
veteran's uncontradicted hearing testimony under oath, he has
a wholly sensory nerve injury tantamount to moderate
incomplete paralysis of the affected nerves.
CONCLUSION OF LAW
The criteria are met for a higher 10 percent initial rating,
but no greater, for the right nerve injury. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.124a
Diagnostic Code (DC) 8299-8212 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Duties to Notify and Assist
Review of the claims file reveals compliance with the
Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A.
§ 5100 et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a). That is, by way of letters dated in April 2002,
June 2004, and June 2006, the RO and AMC advised the Veteran
of the evidence needed to substantiate his claim and
explained what evidence VA was obligated to obtain or to
assist the Veteran in obtaining and what information or
evidence the Veteran was responsible for providing.
38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16
Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370,
373-74 (2002).
It equally deserves mentioning that the RO issued that first,
April 2002, VCAA notice letter prior to initially
adjudicating the Veteran's claim in November 2002, the
preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112,
120 (2004) (Pelegrini II). And since providing the
additional VCAA notices in June 2004 and June 2006, the RO
and AMC have readjudicated the claim in the February 2007
and July 2008 supplemental statements of the case (SSOCs),
including considering any additional evidence received in
response those additional notices. This is important to
point out because if the notice provided prior to the initial
adjudication of the claim was, for whatever reason,
inadequate or incomplete, this timing error may be
effectively "cured" by providing any necessary notice and
then going back and readjudicating the claim - including in
a statement of the case (SOC) or supplemental SOC (SSOC),
such that the intended purpose of the notice is not
frustrated and the Veteran is given ample opportunity to
participate effectively in the adjudication of his claim. In
other words, this error is ultimately inconsequential and,
therefore, harmless. See Mayfield v. Nicholson, 499 F.3d
1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006).
Moreover, in cases, as here, where the claim arose in another
context, namely, the Veteran trying to establish his
underlying entitlement to service connection, and this claim
since has been granted and he has appealed a downstream issue
such as the initial disability rating assigned, the
underlying claim has been more than substantiated - it has
been proven, thereby rendering § 5103(a) notice no longer
required because the intended purpose of the notice has been
fulfilled. Goodwin v. Peake, 22 Vet. App. 128 (2008).
Thereafter, once a notice of disagreement (NOD) has been
filed, for example contesting the initial disability rating
assigned, the notice requirements of 38 U.S.C. §§ 5104 and
7105 control as to the further communications with the
appellant, including as to what evidence is necessary to
establish a more favorable decision with respect to
downstream elements of the claim. See also Dunlap v.
Nicholson, 21 Vet. App. 112 (2007).
Here, though not technically required, the RO sent the
veteran a letter in July 2008 discussing the downstream
disability rating and effective date elements of his claim.
See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006),
aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007)
So even if there arguably is any deficiency in the notice to
the Veteran or the timing of the notice it is harmless error.
See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006)
(finding the Board had erred by relying on various post-
decisional documents for concluding adequate 38 U.S.C.A.
§ 5103(a) notice had been provided to the appellant, the
Court nonetheless determined the evidence established the
Veteran was afforded a meaningful opportunity to participate
effectively in the adjudication of his claims, and therefore
found the error harmless).
That is to say, if there was any deficiency in the notice to
the Veteran, the Board finds that the presumption of
prejudice on VA's part has been rebutted:
(1) based on the communications sent to the Veteran over the
course of this appeal, he clearly has actual knowledge of the
evidence he is required to submit; and
(2) based on his contentions and the communications provided
to him by VA over the course of this appeal, he is reasonably
expected to understand from the notices provided what was
needed. Sanders v. Nicholson, 487 F.3d 881 (2007), petition
for cert. filed, No. 07-1209 (S. Ct. Mar. 21, 2008). The
Veteran has been represented throughout this appeal by an
accredited veteran's service organization, The American
Legion, and the Veteran and his representative made arguments
during the hearing specifically addressing the applicable
rating criteria that, if met, would entitle him to a higher
disability rating for his right nerve injury. Their hearing
testimony evidences their actual knowledge of the type
evidence needed to support the claim.
And as for the duty to assist, the RO and AMC have obtained
the Veteran's service treatment records (STRs), service
personnel records, private medical records, and VA medical
records, including the report of his most recent
November 2006 VA compensation examination assessing the
severity of his right nerve injury, the determinative issue.
See Caffrey v. Brown, 6 Vet. App. 377 (1994). As there is no
other indication or allegation that relevant evidence
remains outstanding, the Board finds that the duty to assist
has been met. 38 U.S.C.A. § 5103A.
The Board is also satisfied as to substantial compliance with
its May 2006 and July 2007 remand directives. See Dyment v.
West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11
Vet. App. 268 (1998). This included scheduling the Veteran
for another hearing - which he had, and, in a June 2006
letter, providing him the appropriate release form (VA Form
21-4142) to obtain his confidential records from his private
dentist. The Veteran, however, did not return the release
forms, and all other evidence that he has indicated as
relevant to his claim has been obtained.
Whether the Veteran is Entitled to a Higher (i.e.,
Compensable) Rating for his Right Nerve Injury
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities (Rating
Schedule), which is based on the average impairment of
earning capacity. Individual disabilities are assigned
separate DCs. 38 U.S.C.A. § 1155 (West 2007); 38 C.F.R. §
4.1 (2008).
If two evaluations are potentially applicable, the higher one
will be assigned if the disability picture more nearly
approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7. When reasonable doubt arises as to the degree of
disability, this doubt will be resolved in the Veteran's
favor. 38 C.F.R. § 4.3. And as already alluded to, if, as
here, there is disagreement with the initial rating assigned
following the grant of service connection, separate ratings
can be assigned for separate periods of time, based upon the
facts found. That is to say, VA may "stage" the rating to
compensate the Veteran for times since the effective date of
his award when his disability may have been more severe than
at others. Fenderson v. West, 12 Vet. App. 119, 125-26
(1999).
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and, above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, irrespective of whether
they were raised by the Veteran, as well as the entire
history of the Veteran's disability in reaching its decision.
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
The Veteran asserts that he is entitled to a higher initial
rating for his service-connected right nerve injury,
currently evaluated as noncompensable under 38 C.F.R. §
4.124a, DC 8212, for Paralysis of Twelfth (hypoglossal)
Cranial Nerve. Pursuant to DC 8212, which is dependent upon
loss of motor function of the tongue, a 10 percent rating is
assignable for moderate incomplete paralysis of the twelfth
(hypoglossal) cranial nerve.
In July 2002 the Veteran was afforded a VA examination, at
which time the claims file was reviewed for his pertinent
medical and other history. The VA examiner noted the Veteran
had had wisdom tooth surgery in 1999, during his military
service. The Veteran said his current symptoms are severe
shooting pain when flossing and alternating pain and numbness
in his tongue, which interferes with his marital relations
and leads to headaches, often severe.
In August 2002, the Veteran was administered a VA dental
examination, where the VA examiner concluded the Veteran had
paresthesia of the right lingual nerve, secondary to nerve
injury at the time of the wisdom tooth (#32) removal in 1999,
during service, without loss of function, and hyperesthesia
of right inferior alveolar nerve, also secondary to nerve
injury at the time of the #32 removal, and also without loss
of function.
The Board remanded this case in May 2006, in part, to
schedule the veteran for another VA examination to assess the
severity of his right nerve injury, including a neurology
examination to determine the degree of motor impairment, if
any, of the right lingual nerve and the right inferior
alveolar nerve (since, under the applicable rating criteria,
38 C.F.R. § 4.124a, DC 8212, motor impairment -
specifically, loss of motor function of the tongue, is
required for a compensable rating). The examiner was also
asked to state whether the Veteran has moderate or severe
incomplete paralysis, neuritis or neuralgia or complete
paralysis of the affected nerves.
After examining the veteran on remand, in November 2006, the
VA examiner concluded there is no paralysis of muscles
secondary to the neuropathy of these nerves, as these nerves
do not have motor function. They are pure sensory nerves,
and a requirement that there be motor impairment is not
medically sound. The examiner went on to indicate the
Veteran clearly has neuropathies of these nerves, consistent
with the anatomy, in that there is sensory loss and
hyperesthesia.
The term "incomplete paralysis" with respect to nerve
injuries indicates a degree of loss or impaired function
substantially less than the type pictured for "complete
paralysis" given with each nerve, whether due to the varied
level of the nerve lesion or to partial regeneration. When
the involvement is wholly sensory, the rating should be for
mild, or at most, the moderate degree. See the note in
38 C.F.R. § 4.124a.
The November 2006 VA examiner disputed the notion that motor
impairment (specifically, loss of motor function of the
tongue) is involved with the particular nerves at issue,
inasmuch as these nerves do not have any motor function.
This is at odds with the specific requirements of the Rating
Schedule since a note in the applicable DC 8212 clearly
states that a compensable rating of 10, 30 or 50 percent is
dependent upon loss of motor function of the tongue. So
inasmuch as the veteran does not have this, a compensable
rating seemingly is not warranted. But consider, as well,
that the November 2006 VA examiner went on to confirm
the Veteran has neuropathies of the affected nerves,
consistent with the anatomy, in that there is sensory loss
and hyperesthesia. The veteran testified during his hearing,
under oath, that he has no sense of taste on the right side
of his tongue, i.e., the side of the damaged nerves, and that
he cannot chew food on this side of his mouth either. Hence,
considering that his hearing testimony was under oath and
is supported by the November 2006 VA examiner's findings of
this type of neurological impairment (sensory loss and
hyperesthesia), the level of his disability is tantamount to
moderate incomplete paralysis of the affected nerves.
Because, according to the November 2006 VA examiner, the
nerves affected are "pure" (meaning "wholly") sensory
nerves, the veteran is entitled to at most a 10 percent
rating under 38 C.F.R. § 4.124a, DC 8212.
One other point worth mentioning, another potentially
applicable DC, 6276, does not provide a basis for assigning a
rating higher than 10 percent because this is the highest
possible rating under this code - even assuming, as he
alleges, the Veteran has complete loss of a sense of taste
because of his right nerve injury. And to twice compensate
him for this very same symptom would violate VA's
anti-pyramiding regulation - 38 C.F.R. § 4.14.
The veteran has met the requirements for this higher 10
percent initial rating, albeit not greater, since the
effective date of his award - January 28, 2001,
the day after his discharge from service when he returned to
life as a civilian. But he has been, at most, 10-percent
disabled since that date, so the Board may not "stage" his
rating because this represents his maximum level of
disability for the entire period at issue. See Fenderson, 12
Vet. App. at 125-26. He is, however, as mentioned, entitled
to this higher 10 percent initial rating dating back to the
effective date of his award - January 28, 2001, especially
resolving all reasonable doubt in his favor concerning the
severity of the disability since his discharge from service.
38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Alemany v. Brown,
9 Vet. App. 518, 519 (1996).
Finally, the Board finds no reason to refer this case to the
Compensation and Pension Service for consideration of an
extra-schedular evaluation under 38 C.F.R. § 3.321(b). That
is, there is no evidence of exceptional or unusual
circumstances, such as frequent hospitalization or marked
interference with employment, to suggest the Veteran is not
adequately compensated by the regular rating schedule.
During his November 2008 Travel Board hearing, the Veteran
stated that he was no longer able to work as a firefighter
due to his service-connected disabilities, but primarily
referring to his headaches. He also indicated he had since
obtained other employment servicing fire extinguishers -
albeit at less pay, and there is no indication his salary at
this other job is so meager as to not qualify as
substantially gainful employment versus only marginal
employment. 38 C.F.R. § 4.18; Moore (Robert) v. Derwinski, 1
Vet. App. 356, 358 (1991). See also Faust v. West, 13 Vet.
App. 342 (2000), wherein the Court defined "substantially
gainful employment" as an occupation that provides an annual
income that exceeds the poverty threshold for one person,
irrespective of the number of hours or days that the veteran
actually works and without regard to the veteran's earned
annual income...." See, too, VA Adjudication Procedure
Manual, M21-1, Part VI, paragraph 7.09(a)(7), defining the
term as "that which is ordinarily followed by the
nondisabled to earn their livelihood with earnings common to
the particular occupation in the community where the veteran
resides."
As a result of this decision, the veteran now has a 10
percent rating for his right nerve injury, and this higher
rating is being assigned retroactively effective from January
28, 2001, the day he returned to civilian life. According to
38 C.F.R. § 4.1, generally, the degrees of disability
specified in the Rating Schedule are considered adequate to
compensate for considerable loss of working time from
exacerbations or illnesses proportionate to the severity of
the several grades of disability. Indeed, in Van Hoose v.
Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated that
the disability rating, itself, is recognition that industrial
capabilities are impaired. Also, most, if not all, of the
evaluation and treatment the veteran has received for his
right nerve injury has been on an outpatient basis, not as an
inpatient. So the Board is not required to remand this claim
for extra-schedular consideration. VAOPGCPREC 6-96. See
also Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd
v. Brown, 9 Vet. App. 88, 96 (1996); and Shipwash v. Brown,
8 Vet. App. 218, 227 (1995).
ORDER
A higher 10 percent initial rating is granted for the right
nerve injury, retroactively effective from January 28, 2001,
subject to the laws and regulations governing the payment of
VA compensation.
REMAND
Also during his November 2008 Travel Board hearing, the
Veteran testified that he had been seen the Thursday
immediately prior to the hearing in the emergency room of a
private hospital ("Kaiser") for treatment of his service-
connected headaches. When questioned further about this, he
said he rather frequently has to go to the emergency room
because his headaches become so severe that he cannot treat
them himself, such as by secluding himself in a quiet place
not subject to light. The emergency room records of this
most recent treatment are not on file and should be obtained
before deciding his appeal. 38 C.F.R. § 3.159(c)(1).
Accordingly, the claim requesting a higher rating for his
headaches is REMANDED for the following development and
consideration:
1. Contact the Veteran and ask that he
provide the names and addresses of all VA
and non-VA medical care providers who
have treated him for his headaches,
including in particular on the Thursday
immediately prior to his recent November
2008 Travel Board hearing. With his
authorization, obtain these and any other
records he indicates are relevant to his
claim.
2. Then readjudicate the claim for an
initial rating higher than 10 percent for
the headaches in light of the additional
evidence. If this claim is not granted
to the Veteran's satisfaction, prepare
another SSOC and send it to him and his
representative. Give them time to
respond before returning the file to the
Board for further appellate consideration
of this remaining claim.
The Veteran has the right to submit additional evidence and
argument concerning the claim the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs